Court File and Parties

COURT FILE NO.: FS-15-0418-00 DATE: 2016 07 28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Ann Wotherspoon, Applicant AND: Lindsay Joseph Wotherspoon, Respondent

BEFORE: Mr. Justice Graeme Mew

COUNSEL: Karinda Dockrill, for the Applicant Rachel Stephenson, for the Respondent

HEARD: 26 July 2016, at Belleville

Endorsement

[1] The issue on this motion is whether the father should pay table child support to the mother on an interim basis pending the trial of the mother’s application to address child support and access issues.

[2] Since 2012, the parties have had joint and shared custody of their two children. Both of the parents are in the Canadian Forces, earning approximately the same. They agreed to pay the children’s section 7 expenses upon an equal basis and also agreed that no child support was payable.

[3] From the outset, the parties recognised that mobility might become an issue because of the itinerant nature of military life. They agreed that if one or both of them moved, they would use mediation in efforts to determine residency arrangements that were in the best interests of the children. They declared that they would try to maintain “the spirit of the 50% shared parenting arrangement to the best of their ability”.

[4] In 2013, the parties added an addendum to their original separation agreement providing that child support would be payable in the basic table amount during an extended absence, for training or other purposes, of either party. They also agreed that neither party would rely on or argue the fact of an extended absence or transfer to another base within Canada or deployment elsewhere as grounds for justifying a change in the joint custody arrangements.

[5] Things seemed to work quite well so long as both of the parties resided in Kingston. However, in 2014, each of the parents was posted elsewhere: the mother to Trenton, the father to Petawawa.

[6] The parents dealt with this further change by entering into Minutes of Settlement which provided that the children would reside with the mother in Trenton, but the children would reside with the father at least two weekends per month (some more if possible), six weeks in the summer, all of March break and alternating weeks during the Christmas holidays. The agreement provided that:

Neither party shall pay child support, in view of the fact that the sharing of the children’s time is approximately equal throughout the year, and that the parties’ incomes are approximately equal, and in view of the costs of travel for both parties.

[7] The record indicates that the apparently cooperative relationship between the parties which existed until 2014 is breaking down. The mother, in particular, no longer regards shared parenting as feasible.

[8] In the mother’s application, commenced on 15 December 2015, she claims that the children reside in the mother’s “primary care.” The father does not have the children 40% of the time or greater.

[9] In an affidavit sworn in support of her motion, the mother says that she has the children at least 75% of the time and that she is the parent meeting the children’s day-to-day needs as a result.

[10] The father says that in 2013 and 2014, the children were primarily in his care for roughly 57% and 55% of the year, respectively. In 2015, however, he was away on training exercises during February, March and April. In accordance with the agreement of the parties, he paid table support to the mother during these periods of extended absence.

[11] The mother responds that the children were not with the father 40% of the time in 2015. She also says that the father counted any shared day (such as a pick up/drop off day) as a full day with him.

[12] The mother argues that child support is the right of the child. It is not something to be contracted over by the parents. Pursuant to s. 3 of the Federal Child Support Guidelines, there is a presumption that child support will be paid in the table amount.

[13] The father says that the parties’ agreements should be respected. In those agreements, the parents expressly contemplated that one or both of them might be relocated. Section 33(12) of the Family Law Act provides a court with the general discretion to award an amount of child support that is different from the amount which would be determined under the Child Support Guidelines if the court is satisfied, first (a) that special provisions in a written agreement respecting the spouses’ financial obligations, directly or indirectly, benefit a child, or (b) that special provisions have otherwise been made for the benefit of a child; and secondly, that the application of the Child Support Guidelines would result in an amount of child support that inequitable, given those special provisions.

[14] Pursuant to s. 9 of the Child Support Guidelines, shared custody arises where a parent or spouse exercises a right of access to, or has physical custody of, a child, for not less than 40% of the time over the course of a year. As the authors of Law and Practice under the Family Law Act of Ontario, looseleaf (Toronto: Carswell) note, at 33 § 4.1(g),

… there are few criteria to guide the process, and the determination [of the amount of the child support obligation in a shared parenting situation] is largely discretionary. Consequently, the calculation of 40% of the time with a parent remains a live issue in the case law.

[15] It is always open to a court to look behind an agreement between parties that purports to deal with issues of child support. The principle in this regard was succinctly stated by Horkins J. in C.M.M. v. D.G.C., 2015 ONSC 1815 at para. 90:

First, child support is the right of the child. Second, no contract or agreement can oust the court's jurisdiction in respect of child support. Parents cannot barter away a child's right to support. Third, the parents' conduct at the time of the child's birth and thereafter, and at the time of the Agreement, is irrelevant to the child's entitlement to support. Finally, the court is always free to intervene and determine the appropriate level of support for a child.

[16] The father points out that it is not sufficient for the court to conclude that a provision regarding child support is inadequate on no other basis than the existence of the Child Support Guidelines. As noted by Lack J. in Spencer v. Irvine, (1999), 45 R.F.L. (4th) 434 (ONSC) at para. 7:

There must be a consideration by the court of whether the support provision meets or fails to meet the needs of the child having regard to any other relevant provisions in the agreement.

[17] In Spencer, the agreement had made provision for a transfer of property or other financial benefit, which was effectively an offset against support that might otherwise have been payable. The mother argues that Spencer is of limited assistance to the court because there was no such lump sum or similar provision in the agreement between the parties in this case.

[18] Clearly, the effect of the agreements between the parties and their impact on the right of the children to child support will require a comprehensive evaluation of the agreements and all of the surrounding circumstances. Furthermore, a significant factor in the determination of child support will be whether there is still shared parenting. This will involve the court in a process of review which, as noted above, will involve the exercise of discretion.

[19] Given these factors, the key issue for determination on this motion is whether an interim order should be made, pending a full hearing of the application based on a complete evidentiary record.

[20] In the context of interim custody proceedings, it has been held that generally, the status quo will be maintained, in the absence of compelling reasons indicative of the necessity of a change to meet the child’s best interests: Grant v. Turgeon (2000), 5 F.L.R. (5th) 328 (ONSC) at para. 15 (Mackinnon J.). I see no reason not to take a similar approach in this case, especially given the extent to which the agreements between the parties appear to have tried to anticipate the sorts of changes that have taken place in terms of where the parents work and the demands of their respective jobs.

[21] Temporary orders are, by their very nature, based on limited evidence without the security of cross-examination and are only intended to provide a reasonable acceptable solution to a difficult problem until trial. I am not satisfied, on the record before me, that the differences that have now arisen between the parties warrant me departing from the status quo that they agreed to not so long ago. The parties make similar incomes and, regardless of whether the 40% threshold is, in fact, being met (which will no doubt be examined at trial), the parents each spend substantial amounts of time with the children and share section 7 expenses.

[22] Accordingly, I am not prepared to make an interim order which deviates from what the parties have previously agreed to. Whether the circumstances have changed sufficiently to merit a different arrangement should be left to the trial judge to determine.

[23] Accordingly, the motion is dismissed.

[24] I am provisionally of the view that the costs of this motion should be reserved to the judge who hears the mother’s application. Should the parties seek a different disposition, I will receive written submissions on costs (not to exceed 3 pages each) as follows: (a) from the father within 14 days of the release of this endorsement; and (b) from the mother within 7 days of receipt of the father’s costs submissions.

Mew J. Date: 28 July 2016